Right to Life of the Unborn v Promotion of Trade in Services: The European Court of Justice and the Normative Shaping of the European Union
| Date | 01 September 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb02841.x |
| Published date | 01 September 1992 |
| Author | Diarmuid Rossa Phelan |
Right to Life of the Unborn
v
Promotion of Trade in
Services: The European Court
of
Justice and the
Normative Shaping of the European Union
Diarmuid
Rossa
Phelan"
Introduction
Nothing
in
the Treaty
on
the
European Union,
or
in
the Treaties establishing the European
Communities,
or
in the Treaties
or
acts modifying
or
supplementing those Treaties, shall
affect the application
in
Ireland of Article
40.3.3
of the Constitution of Ireland.'
This Protocol, which by virtue of Article
239
EEC will have the same effect as
a Treaty Article, exists to protect the Irish constitutional right to life of the unborn,
not from the written provisions of the Treaty on European Union or feared secondary
legislation thereunder, but from the jurisprudence of the European Court of Justice.
This article argues that the Court has, by reference to its economic and federal
teleology of Community objectives, evolved certain legal techniques applicable to
human rights which will point the Community
in
new normative directions. These
techniques, supported by the doctrines of supremacy over, and direct effect in,
national law,* are brought into play when national constitutional rights which the
Court does not adopt as its own3 are held to have economic implications. The
techniques are used to control the three dimensions of conflict between state and
federal competencies, between a moral and an economic ideal of what is fundamental
(and hence different ideas of fundamental rights), and between different legal doctrines
of justification. The techniques are as follows. First, the definition of an act as a
service solely on account of its economic significance, regardless of the unconstitu-
tional and criminal nature of that act
in
national law. Second, the prohibition as
a matter of principle of all impediments to the freedom of services, even
if
caused
by disparities between national constitutional rights. Third, the use of fundamental
rights to expand the free movement of services and to incorporate thereby supreme
rights, based on different values and supported by the doctrines of supremacy and
direct effect, for market participants. Fourth, the testing of national constitutional
rights as derogations from economic principle. The article questions the desirability
of these techniques and also the general solution provided by the Treaty on European
Union as well as the particular response to the Article
40.3.3
problem in the Protocol
and the recent Declaration on the Protocol instigated by the Irish government. An
alternative is proposed
in
the form of a teleological jurisdictional rule.
This article focuses on the structure of argument in
Society for the Protection
of
the Unborn Child
v
Grogan
in
the light of the Court's supporting decisions and
*Ricercatore, Istituto Universitario Europeo, Badia Fiesolana, Italia.
In
the European University Institute, the author wishes
to
thank
in
particular Professor Snyder and Professor
Teubner, and also Professor Joerges and
Mr
Piccotto.
In
the Court of First Instance, the Court of Justice
and the European Court
of
Human Rights, the author thanks several members and lawyers.
Protocol Annexed to the Treaty
on
the European Union and to the Treaties Establishing the European
Communities, Treaty on European Union. Articles in this article are quoted as amended, if amended.
Case 26/62,
van
Gend
en
LQOS
v
Nederlandse Administratie der belastingen
[
19631 ECR
1
;
Case 6/64,
Cosra
v
ENEL
[I9641 ECR
585.
Case
1
1/70,
Internationale Handelsgesellschafi
v
Einfithr-
und
Vorratsstelle fur Getreide
[
1970)
ECR 1125.
I
2
3
670
7he
Modern Law Review
55:5 September 1992 0026-7961
September
19921
The Normative Shaping
of
the European Union
recent constitutional opinion on the European Economic Area.4 The
Grogan
case
is the first case where a private party sought in EC law the means to avoid restraints
on its freedom necessitated by the vindication of the constitutional right of another.
SPUC sought to enjoin under Article
40.3.3
student unions from publishing addresses
of British abortion
clinic^.^
Despite the Supreme Court’s prohibition on the similar
activities of counselling services in
Attorney General (Society for the Protection
of
Unborn Children (Ireland) Ltd)
v
Open Door Counselling Ltd and The Dublin
Wellwoman Center Ltd,
the High Court distinguished this case and made an
Article
177
reference. The Supreme Court on appeal criticised the distinction and
made an interlocutory injunction prohibiting distribution of the information pending
the ECJ’s reply and the High Court’s subsequent determination of the case. But the
Supreme Court did not interfere with the High Court’s jurisdiction to make the
reference, citing
Campus Oil
v
Minister for Energy
(No
2).6
The ECJ held, first,
that abortion ‘constitutes a service within the meaning of Article
60’;
second, that
‘the provisions of Article
59
EEC
.
.
.
prohibit any restrictions on the freedom to
supply services’; third, that on the facts the link to the provision of services was
‘too tenuous for the prohibition on the distribution of information to be regarded
as a restriction within the meaning of Article
59’;
and fourth, that the Court has
no fundamental rights jurisdiction with regard
to
national rules ‘lying outside the
scope of Community law,’ as was the instant case because of the insufficiently
proximate link between student unions and abortion clinics.’ Advocate General
Van Gerven applied the Court’s jurisprudence by testing the constitutional right
as a derogation because he considered the link sufficient. The Advocate General’s
argument brings together several trends in the Court’s jurisprudence which may
be
decisive in the expected follow-up litigation, based either on an agency relationship
between the providers of information and services or directly on the right of free
movement as European citizen (contained in Article 8a of the Treaty on European
Union) and recipient of services. The likelihood of confrontation between the ECJ
and the Irish courts on this related issue was affirmed by the widely reported case
of a fourteen-year-old suicidal Irish girl, pregnant allegedly by
rape,
who was initially
judicially restrained from travelling to the United Kingdom to abort. In
State
v
X,
the High Court and three of the five Supreme Court judges held that where the right
to life of the unborn is not outweighed by the equal right to life of the mother, an
injunction restraining travel to obtain an abortion will issue.8
A
The Scope
of
the
Law
of
Services
The general belief that the abortion issue stood outside EC law was summarised
by Justice Walsh
of
the Supreme Court in the
Grogan
case9:
4 Opinion 1/94,
Re the Draft Treaty
on
a European Economic Area
[
19921
1
CMLR 245; Case 159/90,
Sociery for the Protection of the Unborn (Ireland) Lnd
v
Grogan and Others
[I9911
3
CMLR 849,
noted by Wilkinson [I9921
Public
Law
20; O’Leary [I9921 ELR
138.
The absence of state action is not a problem
in
Irish constitutional law. ‘If one citizen has a right
under the Constitution, there exists a correlative duty on the part
of
other citizens to respect that right
and not interfere with it’
-
Educational Company of Ireland
v
Fitqatrick
(Budd
J,
High Court)
[
19601
IR
368.
SPUC
v
Grogan, op cir
n 4, pp 891-893.
Judgment
of
High Court (Mr Justice Costello),
i%e Irish
Times,
18
February 1992; Judgment of Supreme
Court
@er
Finlay CJ, Hederman and Egan JJ),
The Irish Times,
6
March 1992.
op cir
n
4, p 704. ‘The abortion issue does not touch the EEC and its Court’ according to
J.
Weiler,
67
1
5
6
[I9841
1
CMLR 479.
7
8
9
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